Wagner convicted in Pike County massacre; Masterson case declared a mistrial – TCD Sidebar
In this episode of True Crime Daily The Sidebar Podcast
Florina Altshiler joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss the conviction of George Wagner IV on all counts, a former border patrol agent on trial for the murder of four sex workers, closing arguments in Harvey Weinstein’s sexual assault trial, and a mistrial for Danny Masterson after the jury was unable to render a unanimous verdict on any of the charges facing the actor.
Tweet your questions for future episodes to Joshua Ritter using the hashtag #TCDSidebar.
Joshua Ritter:
[0:00:11]
Hello and welcome to True Crime Daily's The Sidebar, taking you inside the courtrooms of high profile and notorious cases from across the country. I'm your host Joshua Ritter. I'm a criminal defense lawyer, based here in Los Angeles and previously an L.A. County Prosecutor for nearly a decade. You can find me at joshuaritter.com. We are recording this on Friday, December 2nd, 2022.
In this week's episode, we have breaking news in the conviction of George Wagner IV for his role in the Pike County massacre that wiped out eight members of a rural Ohio family. Plus, the ongoing murder trial of a former border patrol agent accused of killing four sex workers and attempting to take a fifth victim prior to his apprehension.
Also, closing arguments in the sexual assault trial of Harvey Weinstein as jury deliberations begin on the former Hollywood mogul’s fate. And finally, in more breaking news, the declaration of a mistrial in the rape case of actor Danny Masterson.
Today, we are joined by Florina Altshiler, a trial lawyer, former state prosecutor who also works as an adjunct law professor and legal analyst. Florina, welcome.
Florina Altshiler:
[0:01:22]
Thanks for having me. Happy to be here.
Joshua Ritter:
[0:01:25]
Absolutely. Absolutely. We're excited for you to be here because of your background. And so, before we begin, I was hoping you could tell us a little bit about your background and what your current practice is.
Florina Altshiler:
[0:01:36]
Sure. I was a sex crimes prosecutor for the State of Alaska and now I defend criminal cases, as well as work in civil litigation cases, and I'm a trial attorney.
Joshua Ritter:
[0:01:49]
Wow. I did not know the Alaska angle. What brought you all the way up there?
Florina Altshiler:
[0:01:55]
Literally, sex crimes. Unfortunately, or fortunately, if you're in the business, sex crimes are four times the national average in the State of Alaska. And so if you're an ER physician, you want to be where the trauma is. If you're a sex crimes prosecutor, you need to be where the sex crimes are happening.
Joshua Ritter:
[0:02:14]
Absolutely. Well, that's very fascinating. I want to hear more about that, but with your background in sex crimes, a couple of the cases we're talking about today involve that. So, I'm curious to hear your thoughts both from the prosecution and defense side of things. So, let's jump right into it.
First, we go to Waverly, Ohio. After a 13-week trial spanning 60 witnesses and nearly 5000 pieces of evidence, an Ohio jury has convicted George Wagner IV on 22 counts, including 8 counts of aggravated murder for his role in the Pike County massacre. The jury deliberated for just seven hours before finding Wagner guilty on all counts.
The killings, which took place on April of 2016, left eight members of the Rhoden family dead after a calculated conspiracy and coverup encompassing four crime scenes in the rural area of Piketon, Ohio. A custody battle between George’s younger brother Jake Wagner and victim Hanna Rhoden is set to be the motive in the massacre with members of the Wagner family conspiring to commit the planning and execution of the murders.
The jury heard testimony from George’s mother, Angela Wagner, and younger brother, Jake Wagner, who both accepted plea agreements in exchange for their testimony against any of their conspirators who went to trial. In Jake's testimony, he alleged that George Wagner did not pull the trigger on any of the eight victims, but that George had helped in the planning and subsequent cover up of the murders, which included dissembling silencers, purchasing "phone jammer equipment" to prevent the transmission of cell signals, and hacking social media accounts.
Wagner is set to be sentenced sometime later in December. The death penalty will not be on the table after plea deals made by Jake and Angela Wagner. Meanwhile, George's father, Billy Wagner, has pled not guilty to all charges facing him in the massacre and is set to go to trial sometime next year.
All right. That was a lot to swallow, but Florina, please jump right in. Does this verdict surprise you at all? What does it mean to you? Also, that it took the jurors only seven hours to reach this verdict after a 13 week-long trial?
Florina Altshiler:
[0:04:25]
Yeah, usually jurors will take longer to deliberate in light of how much evidence there was. But obviously, I think the quickness of their verdict suggests that this was an open and shut case. Thirteen weeks of testimony to be digested in just seven hours. They talked about, ate their lunch, and came up with a verdict basically. There was overwhelming evidence here and you had witnesses testifying from the family as part of agreements against him, which obviously helped and was believable.
Joshua Ritter:
[0:05:05]
Yeah. And it's something that you understand once you've done trials that you can put all this work into an exhibit binder that's three feet thick, and you've got audio tape and video and you send that all back to the jurors and they are not going through every single piece of evidence. And I think you're right, it just indicates how kind of they were convinced probably half the way through this trial, just by the overwhelming amount of evidence. One other thing I wanted your thoughts on, in a very risky move, Wagner took the stand in his own defense in this case. Do you think that was a mistake or was it a gamble that the defense just needed to take?
Florina Altshiler:
[0:05:46]
Let's be honest, it's the stupidest thing any defendant can ever do, but a defense attorney always tries to convince their client not to testify. And then the defendant is a defendant for a reason, right? If they were smart, they wouldn't have been caught. So they're caught, they're charged, now they're my client and I have to try to help them dig their way out of this. Sometimes they listen, sometimes they don't.
And the ones that don't listen always decide to take the stand because they think that they're smart enough, arrogant enough, and convincing enough that they'll be able to tell some sort of a story and the jury’s just going to fall in love with them. Well, let me tell you something. That never happens. They don't convince the jury to fall in love with them and all they do is give evidence against themselves, but that's why they’re criminal defendants.
Joshua Ritter:
[0:06:40]
Yeah. You make excellent points. And not to mention too that even innocent people are going to have a difficult time going through cross examination. I mean you have a prosecutor who does this for a living, asking you very specific questions about statements you perhaps made months and months ago. You're going to trip up somewhere along the way and you almost have to be completely perfect as a defendant taking the stand to do anything for your own good. Would you agree?
Florina Altshiler:
[0:07:08]
Oh dear, a thousand percent right. I mean, who hasn't lied in their life, right? Every human being that says things that sometimes aren't true. They make exaggerations. They make up stories, sometimes to protect themselves, sometimes to look better. No one’s a perfect person. We're all flawed. And the prosecutor has the benefit of time and investigation to come up with every issue that's ever happened that's not going to make you look good.
It's not a question of whether or not you're innocent. It's a question of whether or not the prosecution can prove it. And if they're bringing the case to trial, they probably can. And it's the defense’s job to raise reasonable doubt. A defendant taking the stand is just going to give ammo to the prosecution to show whatever issues are in their background in addition to the evidence against them in this case. So it just never plays out well whether you're innocent or guilty. That's completely irrelevant, it's how are you going to be on that witness stand, subject to an intense cross examination by a very well prepared prosecutor and that just never works out well.
Joshua Ritter:
[0:08:23]
Yeah, excellent points. I love the way that you put that. Even if the “lie” or the misremembrance, pardon me, is about something insignificant and not really related to what you're on trial for. Jurors hang on to those things and they say, well, he lied to me about that, he's probably lying to me about everything else. And they just hang their hat on that and say that I can't believe that guy and it's almost like all the hard work that may have been done on your behalf before then goes right out the window.
So I mean in a case like this, who knows? There was so much evidence, not to mention his own mother and brother took the stand against him. There's a lot of things to have overcome here, but I agree with you, I don't know if he did himself any favors.
Moving on now to San Antonio, Texas. The trial of Juan David Ortiz, a former border patrol agent accused of the 2018 murder of four sex workers in Laredo, Texas is now underway. Prosecutors alleged that Ortiz admitted to the killing spree in an interview with investigators, in which Ortiz reportedly claimed he was “doing a service” by murdering the women. Ortiz was allegedly frustrated with lack of effort to curb prostitution in Laredo, which prosecutors claim was the motive for the killings.
Jurors heard testimony from a fifth sex worker who alleged that she was able to escape Ortiz and alert authorities, ultimately leading to his arrest. Ortiz' defense was granted a change of venue in the trial with the proceedings now taking place in San Antonio. His defense has maintained that the confession obtained by investigators was coerced. Now, Ortiz faces capital murder charges. In the case, prosecutors will reportedly not seek the death penalty, citing the unanimous approval of the victims families to seek life without parole for Ortiz.
Florina, I want to talk to you about this idea of coerced confessions. First of all, have you ever come across it as a defense attorney or as a prosecutor where it was became an element and how hard of a cell is this for a defense attorney to say that yeah, you heard my client’s conviction, but that was “coerced”?
Florina Altshiler:
[0:10:35]
Yeah. I think most people are very familiar with the Central Park 5 case where you had young men who were accused of raping this young woman in Central Park in the late 1980s and they all gave coerced false confessions and were ultimately convicted. And 20 years later, their convictions were overturned because DNA showed that a completely different person did this. That's the case that I think most people are very familiar with. It's been in the press a lot. That is not unique.
False confessions are unfortunately quite common. Imagine yourself in a room with law enforcement, keeping you there, telling you you cannot leave, asking you questions, and suggesting to you or outright telling you that you need to tell them some bit of information and then you can leave. Five hours into this, seven hours in, ten hours in. Eventually, every human being, whether law enforcement or not, whether smart or stupid, doesn't matter, you're going to reach a breaking point. You're going to reach a point where you're going to say okay, yeah, I'll show you where that body is. I just want to leave. I want to see my family. I want to get a meal. I want to use the bathroom. I don't want to sit in this room for ten more hours. And so you say whatever you think they want to hear because you just want this thing to end and that's your classic false confession.
Now, where we know confessions are not false is when the person gives information that only the killer would not, right. You can't give a false confession bringing the police to the body. How did you know where the body was? And so it's in the details of what's in that false confession that will help us understand whether in fact it is a false confession, right? Is the person just regurgitating information that the police told them, right? Where did you leave the blue ties? Oh, the blue ties are downtown, very nonspecific. And we're referencing those blue ties, but only because we're repeating what the police told us versus somebody who's actually giving additional information that could only be known to the killer that was not provided to them by the police. And that, there, cannot be a false confession, because how did you know that information?
Joshua Ritter:
[0:13:05]
Excellent way of explaining it. And it's important for people listening on this to understand that there have been studies on this. This isn't just kind of anecdotal evidence from a defense attorney. There are studies on this, and they know that this does occur.
Another thing to understand too, is that interrogations aren't oftentimes what we imagine them to be from what we see in movies and TV, that this isn't you sitting under a hot lamp and then pounding the table in front of you. , and going after you so hard. Lots of times, the most given two coercion type of interrogations are the ones where it's like, hey, buddy, I just want to get you out of here. I just want to hear your side of things. Like listen, I got to explain this somehow, help me out. Isn't it true you were there that night? Listen, I know it is. It's not a big deal and convincing the person being interrogated, exactly like you said Florina, that they just want to get out of there, and that maybe that's their ticket. Just go ahead and agree with whatever they're saying, and then I'm going to be home in my cozy bed when this is all said and done, and instead they find themselves in handcuffs.
Let's talk about the fact that there's an actual fifth victim who survived. Is that insurmountable for the defense in this case? I mean not only do you have him confessing, but you've got a fifth person who's basically going to corroborate his confession. What are your thoughts?
Florina Altshiler:
[0:14:33]
Well, she's a vulnerable victim. She's a prostitute. I believe there was some information about possibly drug addiction. And people who prey on vulnerable victims, sometimes do so for a reason, right? They're smart enough to pick out a victim that's not potentially going to be credible. And those are problems for the prosecution and also helpful to the defense. Just because she's available to testify and survived and escaped does not mean that her testimony is automatically going to be believable. There's a lot for the defense to work with in terms of her credibility.
That does not mean that she's not a victim, of course. But most of the time, the victims that we see, especially in sex crime cases, but in many violent crimes, are people who are vulnerable, elderly people, children, people with mental illness, people with drug addictions, people who just cannot give a consistent story due to their underlying conditions. And unfortunately, criminals see that and take advantage of that. They prey on people who are not going to be great witnesses because they think they can get away with it.
And the reality is sometimes they do get away with it because of these underlying handicaps that these people have and they come across as not being super believable. That being said, the prosecutor just has to get out in front of this. The prosecutor has to own who his witness is, complete with whatever her flaws are, and convince the jury that despite these flaws, that does not mean that she does not accurately remember the most horrific thing that's ever happened to her, and in describing this incident and how she got away. And it will be up to the jury to believe whether or not they want to accept that as true. I suspect they will. I suspect that they can see past whatever those words might be.
Joshua Ritter:
[0:16:43]
Yeah, excellent points. And we'll continue to watch this case as it unfolds because it does have some fascinating aspects to it. Now, let's turn to Los Angeles, California where Harvey Weinstein’s sexual assault trial will finally be drawing to a close as jurors heard closing remarks on Thursday, December 1st, before beginning their deliberations.
The former Hollywood mogul faces five counts of sexual assault and two counts of forcible rape alleged by four women with the alleged interactions taking place between 2004 and 2013. In her closing arguments, Deputy District Attorney Marlene Martinez said there is no question that Harvey Weinstein was a predator. And like all predators, he had a method. The prosecution called on over 40 witnesses in addition to the four alleged victims and an attempt to depict a pattern of abuse employed by Weinstein.
Meanwhile, the defense took a largely combative approach from the get go attempting to poke holes in the testimonies of Weinstein's accusers oftentimes eliciting emotional responses, most notably from Jennifer Siebel Newsom, the wife of California Governor Gavin Newsom. Weinstein’s defense dismissed the prosecution’s case as smoke and mirrors in their closing arguments, saying five words that sum up the entirety of the prosecution’s case, take my word for it. Take my word for it that he showed up at a hotel room unannounced. Take my word for it that I did not consent. Take my word for word that I said no.
Weinstein still faces 20 million years in prison after his previous New York conviction. However, the states highest appeals court has agreed to hear Weinstein's appeal. All right. Florina, I'm going to put you on the hot seat here. What do you think? I know you've been following this case pretty closely. Did the prosecution carry the day or do you think that defense may have pulled off a win here?
Florina Altshiler:
[0:18:30]
I mean, I think ultimately, he's already been convicted in other rape cases. He's sitting in jail for friggin ever. Does it even matter? What are we doing this for? I suppose to give these victims, these additional victims, their day in court and to let them have their voice be heard. But whether he's convicted or acquitted, he's going nowhere but dying in that jail cell.
So really, at the end of the day, I don't think it matters. Will the jury believe these victims? These cases are tough because you have a gap in time, you have potential motives to fabricate lie, exaggerate. You have somebody that's already been the target of sex crime allegations. I don't think anyone on the jury is oblivious to that. They know who he is. They know what's been in the news. And they're not going to be able to ignore that, but it cuts both ways, right.
On the one hand, him already being convicted of other sex crimes suggests he's a sexual predator and most likely did this. The other way it could cut is him having had been accused of these things by other people, could be additional victims jumping on that money train, jumping on the bandwagon, oh me too, even if it didn't really happen. And it's really just a question of credibility. I believe that they will believe them and I believe that he will be convicted. But even if he's not, I don't think it's going to matter because of the time he's already serving.
Joshua Ritter:
[0:20:04]
Yeah, yeah. To some extent, you're right. The prosecution is playing with house money as it were. If that appeal isn't successful, that changes a lot of things. But at least for right now, they know they have that safety net that like you said, he's not going anywhere.
I want to talk a little bit about the defense’s approach in this case. From the reports that we have, it appears as though the prosecution was fairly straightforward in their presentation of the case, but the defense was, from reports, we didn't have cameras in courtroom, but from reports, apparently very aggressive and combative from the very beginning.
And I'm curious to hear your thoughts on that, because from my perspective, one of the most difficult things as a defense attorney is dealing with an accuser who – I'm male, they’re female, and how do I approach the cross examination of this person who says that they have suffered some great harm at the hands of my client? What are your thoughts on coming out of the gate guns a blazing and basically saying I'm dealing with liars here and that's why I'm going to go after them?
Florina Altshiler:
[0:21:12]
Yeah. I've done that once ever as a defense attorney where I straight up said this woman is a liar and in order to convict my client, you have to believe this liar. Once, ever, out of dozens of these types of cases. I think the better approach and I will say in that case, there is significant evidence to expose the fact that she gave completely inconsistent statements and straight up lied.
Generally, that's not really the case. You don't have lies that are that blatant and exposed. And these are sympathetic claims and these are sympathetic people, right? Anyone who says that they were sexually violated automatically start off with a leg up, automatically start off as being sympathetic. And you kind of have to get out from underneath that and convince the jury that while what is being said is tragic and sympathetic and awful, perhaps there's a reason that it's not consistent. There's an issue with memory. There's an issue with recollection. There's a detail that's wrong. There's motive to perhaps fabricate. There's some vendetta. There's some bias. There's some reason that this is being said. Maybe there's other trauma. Maybe they're conflating being the victim at somebody else’s hands with now blaming this person.
But I prefer on cross examination to really question the victim with kid gloves on, very calmly, very politely. And sometimes by doing a soft and kind cross examination, you actually get these alleged victims to give you a lot of confessions, to get comfortable with you, to agree and to concede the things that don't sound like you're attacking them. And once you get that ammo of those facts that are helpful, but don't sound that terrible, then you've got your argument built versus coming out of the gate just accusing them, being confrontational being aggressive. I think that's not a good strategy, with very few exceptions. But a lot of times, when you do that, you lose the jury. They think you're an asshole. They think you're beating up on this victim and they take it out against your client even more so.
So it's not the best strategy. I don't envy men who have to cross examine rape victims. I think they're at a disadvantage just based on gender right there, and it's about optics. And you have regular people in the jury viewing this and making judgments. And so those optics matter. That's why a lot of times I get brought onto sex crime cases to defend them based on gender. It just looks good but good, better, kinder, gentler to have a female crossing a female victim.
Joshua Ritter:
[0:24:16]
Yeah. No, I agree with you. I mean I always say the most important thing to realize in that courtroom is the only audience you care about are those twelve sets of eyes that are looking back at you. And if you offend them like you said or turn them off or get them to somehow just dislike what you're doing in court, they could easily turn off the excellent points you might be making on cross could be lost to them.
But your strategy, I think is a sound one of making points where you can, put them all in your pocket, and then when you get to closing arguments, you can go ahead and unleash. But while that person is on the stand, you have to be very conscientious of whether or not you have the jurors on board with you if you're going to be very aggressive. So this case it may be getting a verdict any day now and we’ll continue to follow that for sure.
Moving down the hall of the same courthouse, we have breaking news that after six days of deliberation, the judge presiding over Danny Masterson’s rape case declared a mistrial, finding the jury hopelessly deadlocked. Masterson was charged in 2020 with three counts of rape, alleged by three separate women in incidents alleged between 2001 and 2003. Initially, the jury of seven men and five women couldn't come to a unanimous decision on any of the charges. However, the judge sent them home for the Thanksgiving holiday to come back a week later.
Upon return, two jurors had Covid and had to be replaced. Now, making the makeup of the jury six men and six women. This jury again could not reach any unanimous verdict and after having to start their deliberations all over again, we're going to get into all of this, the breakdown was for count one, 10 to 2 for not guilty. For count 2, 8 to 4 for not guilty. And for count 3 7 to 5 for not guilty.
Adding another wrinkle, all three accusers in the case claim that officials from the Church of Scientology intimidated them from coming forward with their allegations sooner. A conference to discuss next steps in the case is scheduled for January 10th of next year, while a new trial has been tentatively scheduled for March 27th of 2023. Though prosecutors have not yet indicated if they intend to retry the actor. Okay. From a lawyer's perspective, a lot of this is shocking stuff. First of all, Florina, is this a win for Masterson?
Florina Altshiler:
[0:26:45]
Oh, of course it is. I mean when you look at the breakup of the jury with the majority of deciding not guilty, I'm surprised that the prosecution is going to be retrying this case with the numbers being as they are. Usually, when you have 10 for not guilty and only two for guilty, it's just a case you don't retry.
Certainly, they're going to have a new jury. They're going to have a second opportunity to put the evidence on the way they think they should put it on. So it's a second chance and they could get a very different result. But generally, with hung juries, when it's a split in the opposite way, right, 10 for guilty, 2 for not guilty, that's the case you retry. When it's so heavy for the defense, generally prosecutors don't retry those cases. So I'm surprised.
Joshua Ritter:
[0:27:40]
Yeah. I would be surprised if they flat out retry this as well. I agree with you. That is a very big obstacle to overcome, especially because what is the prosecution are going to argue that they were not able to do at this trial that they would be able to drew at a later trial? They put on all their witnesses, none of them recanted. They even had a surprise fourth witness come in through a misstep by the defense that opened the door for this fourth witness to testify. So you had about as good a case since you were ever going to put on. And not only did it not carry the day but most of the jurors were convinced otherwise.
To me, the prosecution in such a high profile case like – if this were a case that nobody we're talking about, it was just another case that happened to be taking place at the downtown criminal court building, I think they would have just dismissed the thing, probably that day. But because the whole world is watching this and reacting to it, I think they have to kind of put on this show about how they're going to consider what to do, but I think they come hat in hand, back to the Masterson team and see if there's any way that they could possibly settle this in a way that would allow them to save face.
A couple of other things I wanted to talk about because so much of this is fascinating to me. Talk to me about what are your thoughts on the idea that it was not the same split on all three counts. In other words, it wasn't 10 to 2 for not guilty on all three, but they changed their votes on all three. What do you make of that?
Florina Altshiler:
[0:29:13]
Sure. Well, the elements of each count are different and the evidence, the facts to support those counts are different. So perhaps there was more evidence to support one count versus another that convinced a handful of people to lean for guilty versus not guilty. It's just like a verdict on anything with multiple counts, right? I've tried cases where my client is acquitted on the robbery, but convicted on the assault. Why? Because there's different elements for the two different counts. And there's enough evidence beyond a reasonable doubt for the elements necessary of one count but not enough elements are met for the other count. And all you need is to miss just one element of the count for it to be not guilty.
So if there's not enough facts to support each and every single element of that count, that's a not guilty on that count. And the prosecution just needs to miss one element. And I think the defense attorneys did a great job articulating that to the jury in this case. Obviously, the victims are not believable. They're not believable, and that's where you're not guilty is coming from and it doesn't matter which element they're going to hang their hat on. But you also had multiple victims too, right? And maybe some of the jurors liked one of the ladies more than the other lady.
Joshua Ritter:
[0:30:40]
Yeah. Yeah. I think what it says too, and if you're the defense, you'd certainly be making this pitch for why you think that either the prosecution dismiss it or the judge should intervene and dismiss it on her own, is it shows a very conscientious jury, right. It wasn't just that people had dug in their heels and we're going to say guilty or not guilty no matter what, but at least a few of those people obviously considered the evidence carefully enough to say no, I believe this person, but I don't believe that person or I felt there was enough evidence, like you said, to carry the day on this charge because they met all the elements, but they missed one of the elements on that charge.
It shows a very hard working, conscientious jury, and I think that's the argument that you make if you're the defense. And not only did they put on the best and only case that they've got, but they got themselves a good jury who were very thoughtful about it and still most of them were convinced that there was not enough evidence here.
Let's talk about, it's almost a moot point at this point, but to me it was frustrating and interesting, but this idea about the judge to send the jurors back after they initially had said that they were hung and we call this an Allen instruction. Could you talk to us about your experience with that, what it means and why it might be so frustrating to a defense attorney?
Florina Altshiler:
[0:32:04]
Sure. So I mean a defense attorney loves a mistrial because that means potentially the prosecution may not try it again. And if they do, you already had the benefit of basically watching this movie start to finish once. So when we replay it a second time, you can be better prepared. The only thing better than a mistrial of course is an acquittal. So if a jury says they're hung to a defense attorney, that means it's going to be a mistrial. That means game over on this one and maybe there will be a do over. But the maybe is a good thing because maybe there won't be.
So defense attorneys don't want the jury going back and deliberating further when you're balancing the benefit of a mistrial versus the potential of a conviction. It's going to be up to the individual judge and up to how long that jury has been deliberating to decide whether or not to send them back, right. Imagine this, the jury goes back. They talk for a couple of hours and they say we can't decide. So two hours later, they come back and they say no, we’re hung. No judge is ever going to send that jury home after they talked about it for two hours. That just does not make any sense, right?
So there's a gray area. And it's not clear. There's not a fine line. It's not like there's a rule that if you deliberate for five hours, you got to go back. But if you deliberate for 10 hours, then you’re hung. It's going to be up to the discretion of that judge to decide how long is long enough, right. So when they come back and they say we're hung, the judge has the option to decide, well, this is the number of hours you spend talking about it, this is the length of time this trial went on for, I don't really think you’re hung. Why don't you go back and try to discuss this further and see if you could think about this more, see if you could come to an agreement.
Oftentimes, juries like this one come back a second time and say no, really judge, we’re hung. And then the judge says, all right, well, you've done what you've done, you've put your best effort forward. And the reason judges do this is because when the entire court system, right, the lawyers, the court staff, the judge, the court officers, when everyone has invested their time, money and resources into a trial that went on for a multitude of weeks, the system doesn't want a do over. The system wants some finality. And so if they could get this jury to agree, and to have that finality, that would be beneficial versus having to invest time, money, and resources all over again into a potential retrial.
Joshua Ritter:
[0:34:56]
Yeah. Last point on this. First of all, it's interesting to note that that instruction doesn't exist in all jurisdictions in the country. So in some jurisdictions, if you say to the judge we’re hung, the judge just takes it as a mistrial. But California is one, I think you're you're saying New York is one as well that don’t give that type of instruction. And it can be frustrating to, especially like you said the defense, because even with the hung, they can kind of view that as a win because at least it's not conviction. But it almost signals to a jury that, hey, we don't want you to be hung, we want you to have a conviction and that might put pressure on holdout jurors. And if you're a defense attorney, you're thinking well, those two people might be holdouts for not guilty, and I don't want them to feel pressured.
The added kind of element here – and I like the judge in this case, I know her. But she made that decision one, after they had already deliberated for three days. So it wasn't like they hadn't done some work. They had asked to see some evidence so they were working back there. And two, she didn't just send them back from Friday to Monday. They took an entire week off for the holidays. What are your thoughts on all of that?
Florina Altshiler:
[0:36:16]
Yeah, I don't particularly care for the week off for the holidays. I feel like – I mean luckily, it's still a hung jury mistrial, right? But what I don't like about a week off if it can be avoided is there's now the potential, even though they're instructed not to, of them, I mean obviously they're going to have contact with their family members. That's the whole point of them having the week off, right, for the holidays. And now that just heightens that urge and that potential for them to have inappropriate communications about the case with their friends, with their family members, go on social media, check the news, and do all of those things that they promised not to do. But the police isn't that their window watching them, making sure that they're not having these conversations.
And what do you think their friends and family are asking them at Thanksgiving dinner? Hey, so what have you been up to? You know, not much, just sitting in a jury trial. Oh, what's the case about? Oh, I can't talk to you about that, right. And some people are wonderful and they uphold that oath and they don't violate it but the temptation is there.
And I think it's not fair to put these jurors in that temptation. So a weekend off, that happens, obviously. But an entire week during the holidays where they're going to be put in situations where this temptation is there is just not good. And I think were he convicted, that may have been questionable. I think if investigators for the defense looked into what these jurors did and if they had any potential inappropriate communications, I wouldn't be surprised if they did. So, they're lucky that it’s a mistrial.
Joshua Ritter:
[0:38:03]
Yeah. Like I said, it's probably a moot point by now. But when it initially happened, I thought everything that you just said might – we are inviting so much room for error here, but we'll see. We'll see what they do if they try to retry this case or give him a deal or just flat out dismiss it. We'll keep following. In the meantime, Florina, thank you so much for coming on this week. Where can people find out more about you?
Florina Altshiler:
[0:38:30]
Sure. So they can follow me on Twitter @FlorinaLaw. And if anyone has any comments, I'm sure they'll be able to go ahead and do that on YouTube. Thank you so much for having me. It's been a pleasure. I love talking about these cases.
Joshua Ritter:
[0:38:47]
Absolutely. Absolutely. It was our pleasure to hear your thoughts. And I'm your host, Josh Ritter. You can find me on Instagram and Twitter, @JoshuaRitterESQ and at joshuaritter.com. Please come check it out.
You can find our Sidebar episodes wherever you get your podcasts and we want to hear from you. If you've got questions or comments you'd like us to address, tweet us your questions with the #TCDsidebar. And thank you for joining us at the True Crime Daily’s Sidebar.
